Tuesday, December 11, 2012

Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder.

"I don't think it's necessary, but I think it's effective," Scalia said, adding that legislative bodies can ban what they believe to be immoral.

Scalia has been giving speeches around the country to promote his new book, "Reading Law," and his lecture at Princeton comes just days after the court agreed to take on two cases that challenge the federal Defense of Marriage Act, which defines marriage as between a man and a woman. . . .

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

1. I interpret Scalia's phrase "moral feelings against" to refer to disgust. He lends this an air of dignity by using the lofty word "moral," but what he's really talking about is a visceral or aesthetic reaction expressed by interjections like "Eww!" and "Yuck!" We need to think about whether it's actually legitimate for disgust to serve as a primary motivation and justification for passing a law. There's no question that there are good laws that prohibit behavior that happens to be found disgusting. But the question is whether mere disgust can justify a law that would otherwise not seem to have a rational justification. It's fine for people to be disgusted at the thought of a particular couple having sex or even showing any kind of affection. This could be based on any number of factors, including the couple's gender, age, or physical attractiveness. Most people would find it offputting to see certain couples do so much as kiss in a movie — more offputting than they would find a movie scene showing a brutal act of murder. There's a much wider audience for images of violence than for atonal chamber music, but as long as even 1% of the population finds that kind of music pleasant, some people are going to happily exercise their right to create it, no matter how large a majority experiences it as a bunch of noise with no redeeming value. I wouldn't want to live in a society where the presence or absence of such feelings of disgust and revulsion determined what kinds of behavior we're allowed to engage in.

2. I assume Justice Scalia realizes that mentioning gay people and murderers in the same breath is going to be very inflammatory to a lot of people, and isn't the best way to win over those who didn't already agree with him. (He winked at this by sardonically adding: "I'm surprised you aren't persuaded.") This doesn't mean his words were poorly chosen — he might have good reasons to try to stir up controversy over this. And, of course, he has a right to express his viewpoint in his own inimitable style even if he offends people. But while he's remarking on the way voters can make their decisions based on visceral repulsion, he might want to consider that many people are viscerally repulsed by the way he makes his point, and this may affect people's votes in future presidential elections.

3. What matters far more than anyone's visceral feelings about what is or isn't disgusting is this: Murder laws uphold the principle that everyone in a society should have equal rights and responsibilities.

Lawyers representing a Marion County man accused of sexual activity with a miniature donkey have filed a motion asking a judge to declare the Florida statute banning sexual activities with animals unconstitutional.

...the statute doesn't require that the state prove any harm or injury to the animal "or any proof of the sexual activity being non-consensual."

"Therefore, the only possible rational basis for the statute is a moral objection to sexual acts considered deviant or downright ‘disgusting,'?" they wrote.

Using religion or the overall consensus of the public that sexual activity with an animal is wrong as the basis of a law is unjustified and bars Romero's personal liberties, the attorneys argued.

"The personal morals of the majority, whether based on religion or traditions, cannot be used as a reason to deprive a person of their personal liberties," the attorneys wrote. "If the statute were to require sexual conduct with animals to be nonconsensual or to cause injury in order to be a crime, then perhaps the State would have a rational basis and legitimate state interest in enforcement."

Meanwhile it continues to be illegal for consenting adults to negotiate their hourly wage. Some things are just too perverted.

I interpret Jaltcoh's phrase 'I interpret Scalia's phrase "moral feelings against" to refer to disgust' to refer to another argument besides the one Scalia is making in order to show it is wrong. The article explicitly states that Scalia was addressing whether "legislative bodies can ban what they believe to be immoral"; he was not addressing things that might be icky-poo.

Also, Scalia in his opinion was addressing the constitutionality of the law; the question was whether the law was constitutional. The questions was not "whether mere disgust can justify a law that would otherwise not seem to have a rational justification", as you state.